SMS Marketing Compliance

Understanding a complex regulatory landscape

Creating a Compliant SMS Marketing Program

Like email and other marketing channels, SMS/text message marketing comes with a unique set of rules and best practices that companies need to become familiar with as they take advantage of the channel. As with email marketing, there is one key law for marketers in the U.S. to understand in particular, but there are also two key industry organizations that have put out sets of best practices, which marketers should adhere to in order to run fully compliant SMS marketing programs. Below are summaries of some key aspects of these various guidelines. These should provide a good starting point for marketers who are in the process of learning more about the SMS marketing compliance and the overall text message marketing landscape.

The Telephone Consumer Protection Act (TCPA)

The Telephone Consumer Protection Act of 1991 was largely focused on regulating telemarketing activities (since it largely pre-dated text messaging technology), however various aspects of the law do apply to SMS marketing. Included in the TCPA are detailed requirements for running compliant SMS marketing campaigns. Among the various defined requirements, two of the most important revolve around obtaining consumer permission to send automated text messages and providing a way for message recipients to opt-out of future campaigns. The Federal Communications Commission (FCC) is charged with enforcing the TCPA.

Opt-In Requirement

Unlike email marketing, SMS marketing in the U.S. requires prior consent from the recipient before an automated text message may be sent by the advertiser. So, before an SMS marketer can send an automated text message to a recipient, they must have obtained permission in the form of ‘express written consent’ to send that message in the form of an opt-in or subscribe request. A few other details about obtaining permission include:

Permission can be obtained digitally or in written form.

The opt-in agreement/terms must clearly explain that the consumer will be contacted in the future via text, how that may impact their messaging or data rates. It’s important that these terms not be buried in a long document, filled with legal jargon. They should be prominent and clearly stated.

The marketer must provide information about the name of the program, its content and planned message frequency in the terms – as well as clearly describing how recipients may opt-out or unsubscribe from the program (e.g. reply STOP to unsubscribe).

A link to a full list of terms & conditions, including a privacy policy should also be included.

Once consent has been obtained, specific records of the opt-in request must be maintained by the marketer for at least 4 years.

Opt-in records must include the method, time, date, and location of the consumer’s consent, along with the agreed upon terms of the marketing messaging they are agreeing to receive.

Once permission has been obtained and recorded, the SMS marketer’s first message to a new subscriber needs to be a confirmation message that includes some of the key language and elements of regarding the text messaging program the recipient has just subscribed to, along with reiterating the method for opting out of receiving future messages.

Opt-Out Process

Like email SMS requires that marketers provide a valid opt-out method and that they honor those opt-out requests. However, text messages differ from emails and are not designed to include an opt-out link. So, opting out of receiving future messages typically involves replying to the text message sender with the word ‘STOP’ or ‘UNSUBSCRIBE.’ Some SMS tech platforms add other responses to their lists of actionable opt-out requests, including options such as misspellings of typical opt-out words. They may also flag other words that are perceived to be a complaint about receiving the text. The Federal Communication Commission (FCC) states that consumers should be able to opt-out through “any reasonable means.”

The TCPA includes many additional elements that need to be adhered to in order for a campaign to achieve SMS marketing compliance. Among them is the requirement that the content being sent to recipients is consistent with what they signed up to receive (e.g. if the terms explained they would receive special offers, that is what they should be sent).

The Cellular Communications Industry Association (CTIA) provides a set of guidelines for SMS marketers to follow. In conjunction with the telecom industry, the CTIA has created a set ofbest practices to guide marketers in their use of communication and marketing channels like SMS. The CTIA makes distinctions between P2P (one person to one person) vs. A2P, which basically includes any type of text message communication that isn’t one-to-one/person-to-person. As you might expect, the A2P arena is the one most relevant to marketers.

CTIA best practices also include guidelines on content, embedded links and phone numbers, as well as various aspects of data management.

The Mobile Marketing Association (MMA) also provides a set of best practices around using implementing short code programs, various wireless carrier policies and other regulatory guidance.

As with the TCPA, becoming familiar with the CTIA and MMA best practices should be a starting point when setting up a new SMS marketing program.

An Old Channel with Serious Potential

SMS marketing offers tremendous potential to marketers, but ensuring that campaigns are in compliance with laws and guidelines is a must as you prepare to add the channel to your marketing strategy. Develop a fully compliant SMS marketing program and it can be another powerful channel for your overall marketing strategy.

If you need clarification on TCPA and other industry best practices mean to you and your email marketing campaigns, Contact Us Today – we would be happy to review this important information.

As with any legal requirements, it is always recommended to get professional legal advice to ensure your email program is compliant with all relevant laws in different countries and regions.